AUG 18, 1986
CASE NO. 85-TSC-2

In the Matter of

PATRICK CROSBY,
    Complainant

    v.

HUGHES AIRCRAFT COMPANY,
    Respondent

Michael David Kohn, Esq.
509 5th Street, N.E.
Washington, DC 20002

Stephen Martin Kohn, Esq.
Government Accountability Project
1555 Connecticut Avenue, N.W.
Washington, DC 20036
   For the Complainant

Russell F. Sauer, Jr., Esq.
J. K. Hachigian, Esq.
Latham & Watkins
555 South Flower Street
Los Angeles, CA 90071
   For the Respondent

BEFORE: Thomas Schneider
    Administrative Law Judge

    Procedural background

    This proceeding arises under the so-called "whistleblower. provisions of the Clean Air Act, 42

U.S.C. §7622, and the Toxic Substances Control Act, 15 U.S.C. §2622, and the regulations in 29 C.F.R. Parts 18 and 24. In an Order Denying Motion to Dismiss, issued January 3, 1986, I set forth the procedural history of this case to that date, summarized as follows:

   Complainant was employed as an engineer by respondent at its Electro-Optical Data Systems Group (EDSG) in El Segundo, California. He was terminated March 1, 1985. Complainant's complaint was received by the Department of Labor on April 1, 1985; an investigation was then conducted; on May 1, 1985 complainant was notified by Edmund M. Sullivan, Area Director that "our investigation did not verify that discrimination was a factor in the actions comprising your complaint ... it was found that you did not engage in speech or activity protected by the Clean Air Act. The investigation disclosed that you were terminated for refusing to perform an assigned task." (Copy of letter of May 1, 1985.) By telegram dated May 9, 1985, complainant requested a hearing to appeal the Department's decision. In a letter dated May 28, 1985 the Chief Clerk of the Office of Administrative Law Judges acknowledged receipt of the telegram, requested complainant to furnish a copy of the decision, and asked for clarification as to which law complainant was proceeding under. Apparently complainant spoke by telephone to the Chief Clerk, and a TSC number (i.e., the file number, 85-TSC-2, referring to the Toxic Substances Control Act) was assigned to the case and it was referred to the San Francisco Office of the Office of Administrative Law Judges. On August 16, 1985 the Office of Administrative Law Judges received an amendment to the complaint, stating that complainant did not know the precise section of the US Code that was applicable to his complaint, but that he now believes it is the Toxic Substances Control Act.

   The matter was set for hearing before Judge Butler on September 9, 1985. On August 15, 1985 Complainant moved for a continuance for the purpose of discovery. Respondent objected, but the continuance was granted on September 6, and the case reassigned to the undersigned.

   In said order of January 3, 1986, I also ruled that both parties have waived the time requirements of 29 C.F.R. §24.6(b).

   The undersigned has been in charge of the discovery and trial of this case since then.

   An informal conference was set and held with complainant, former attorney for respondent, and the undersigned in San Pedro, California on October 21, 198/; Since then further discovery was undertaken, several conference calls among counsel and the undersigned took place, and a trial was held for 16 days, on February 20 and 21, 1986 in Lawndale, California, and on March 31, and April 1 through 4, in San Pedro, California, and on April 7 through 11, and 15 through 18, 1986 in Santa Ana, California. The transcript exceeds 3,000 pages. (On the authority of the trial judge to limit trial time, see MCI Communications v. American Tel. & Tel. Co., 708 F. 2d 1081, 1170-1172 (7th Cir. 1983) cert. den., 464 U.S. 891.).

   Numerous exhibits were marked in advance of trial by each side, and offered, sometimes by one side, sometimes by the other. Those exhibits originally marked by respondent are herein designated RX; those originally marked by complainant are herein designated CX. References to transcript pages are designated TR.

   Both parties submitted first-rate briefs dated July 3, 1986. Reply briefs by each party were received August 12, 1986.

    Factual background

   Briefly, the facts are: Patrick Crosby, the complainant, had worked for Hughes Aircraft Company (MAC) as an engineer for over three years. He worked at the Image Processing Laboratory (IPL) until mid-September 1984, when he was involuntarily transferred to the Digital Processing Section, in a different division, although housed in the same building. He was placed on probation late in February 1985, and on March 1, 1985 was terminated. Complainant alleges that he was transferred, put on probation, and terminated because of his complaints about suspected illegal cross-charging by HAC, and his complaints that HAC was not performing quality work. These complaints were made to HAC officials, the media, government officials, and others. Respondent contends that the persons who made the decisions to transfer, put on probation, and terminate complainant knew nothing of his complaints for a long time, and that it fired Crosby for non-performance in general, and for failing to follow a specific direct order in particular. In addition, respondent contends that the Department of Labor has no jurisdiction.

    A helpful book which happens to have been written by one of the counsel for complainant states that six items establish a prima facie case of discrimination under the whistleblower statutes:

    1) that the party charged with discrimination is an employer subject to the Act(s);

    2) that the complainant was an employee under the Act(s);

    3) that the complaining employee was discharged or otherwise discriminated against ...

    4) that the employee engaged in "protected activity;"

    5) that the employer knew or had knowledge that the employee engaged in protected activity; and

    6) that the retaliation against the employee was motivated, at least in part, by the employee's engaging in protected activity.

    Stephen Kohn, Protecting Environmental & Nuclear Whistleblowers: A Litigation Manual, Nuclear Information and Resource Service - Government Accountability Project (1985), p. 17.

    The leading case in the Ninth Circuit is Mackowiak v. University Nuclear Systems, Inc., 735 F. 2d 1159 (9th Cir. 1984).

    The parties stipulated that complainant, who was an engineer, or MTS (Member of the Technical Staff) was an employee and that respondent, Hughes Aircraft Company, or HAC, was an employer (TR 88, 89) and there is no question that complainant was fired. Accordingly, the foci of the proceedings and this decision are the last three points mentioned: protected activity, employer knowledge, and employer's motivation. Intimately connected with the employer's motivation is the so-called dual motive test developed by the Supreme Court in Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed. 2d 471 (1977). This test requires me to determine whether, if a prima facie case of unlawful discrimination has been established, the complainant would have been fired even in the absence of the employer's unlawful motive.

    Ultimate conclusion

    As explained below, I conclude that I do not have jurisdiction of the complaint. But even if I had jurisdiction I conclude that complainant has failed to prove a prima facie case regarding his external whistleblowing because the decision makers never found out about it; and that

his internal complaints and questions were overwhelmingly perceived by the decision makers as unwillingness to complete tasks, or meddlesome interference with ongoing work, rather than as complaints about quality or improper charging. Thus, the adverse personnel actions taken against complainant were overwhelmingly based on valid business reasons. Therefore, I recommend dismissal of the complaint.

    Jurisdiction

    Respondent contends that the Department of Labor has no jurisdiction here because HAC is not engaged in any activities that impact the environment within the language or spirit of either the Clean Air Act or the Toxic Substances Control Act (which may conveniently be called the "environmental laws" relevant here) and because the complainant was not engaged in any such activities. The complainant admits that none of his activity prior to the end of February 1985 was protected by the environmental laws. (TR 1494.) This admission, which is amply supported by the evidence, is significant. His complaints before that time concerning illegal cross-charging and poor quality, he contends, served to give him a reputation as a whistleblower. However, he contends, the last task he was assigned brings the environmental laws into play.

    This last task was to work on a program described by the acronym PPUP, standing for prom programming utility program. (CX-39, 40.) It is software-- a program. Mr. Crosby explained that many devices, from microwave ovens to chemical gas detectors, use "imbedded microprocessor systems. n The function of the PPUP is to transfer a program from the computer on which it is developed into the imbedded system. (TR 720.) If this function is badly done, the final product might suffer. Mr. Crosby testified that "bugs" are transient errors-- errors that manifest themselves only on rare occasions. (TR 733.) Thus, a sloppily engineered PPUP might cause a bug in the final system, which might not be discovered until it was too late.

    Respondent alleges it fired Crosby for refusing to perform this last task. Complainant contends that the procedure he was asked to follow in performing this PUPP task was unprofessional, and might have led to bugs in whatever final systems the PPUP had been used in. "I was objecting to this whole -- to this whole procedure and saying that -- that I, you know, I could not -- I was being asked to agree or disagree to the specifics and offer minor modifications, but I was trying to make it clear that minor modifications, you know, would not suffice in my view." (TR 790.) He further contends and testified that he believed that the PPUP could be used in the development of a chemical gas detector, or RAS

(Remote Active Spectrometer), for which HAC had a contract, and on which he worked earlier. (Respondent's answers to complainant's interrogatories No. 4 and 5 admitted that HAC had such a contract.)

    Whether the PPUP would ever in fact be used in the gas detector does not determine whether the Department of Labor has jurisdiction. The fact, as I find, that complainant believed in good faith that his work might be used in a gas detector is sufficient to establish the connection between the work and the detector However, the further step connecting a gas detector designed for ultimate military use with the environmental laws is a long step.

    Perhaps the Secretary' expansive interpretation of the whistleblower acts in favor of employees warrants a similar expansive view of jurisdiction. See, e.g., Lockert v. Pullman Power Products Corporation, 84-ERA-15 (Sec'y., Aug. 19, 1985); Mackowiak, supra; Kansas Gas & Elec. Co. v. Brock, 780 F. 2d 1505 (10th Cir. 1985), (affirming the Secretary), cert. denied by a divided court, June 30, 1986, 106 S.Ct. 3311.

    In my Order Denying Motion to Dismiss I wrote: n It seems likely that any gas detector purchased by any branch of the government might be used to detect gases produced by chemical substances. For example, if a disaster of the kind that occurred in Bhopal, India occurred in the United States, one can readily imagine the army being called in to assist in evacuation of people or in determining when an area was safe to return to." After considerable reflection this comment seems rather faretched. The RAS would have to be adaptable to the kind of civilian use envisaged. This is speculation.

    Another question, raised in respondent's brief, is whether Crosby ever communicated his environmental concern to HAC management in connection with this last PPUP task. Crosby says he did, by mentioning bugs in the RAS. The other people involved, Taylor, Vachal and Van Oler, say they never heard it. Both are possible. What a speaker says and what a listener hears are not the same thing. I would not decline jurisdiction on so doubtful a finding as that Crosby never said, "bugs in the RAS." But, by the same token, that statement standing alone is a slim foundation for jurisdiction.

    Complainant argues that 15 U.S.C. §2621 and 42 U.S.C. §7418 make the Toxic Substances Control Act and the Clean Air Act, respectively, applicable to the Department of Defense. (Reply brief, pp. 31-32.) These sections clearly deal with emissions or pollution by federal facilities and have nothing to do with the instant case.

   Complainant also points to 15 U.S.C. §2608(b), which requires the EPA Administrator to coordinate actions taken under the TSCA with other federal laws. That section refers to Ma risk to health or the environment associated with a chemical substance or mixture." Again, this implies a danger less remote than one caused by a possibility of a faulty design in military equipment, which might be used in a civilian emergency.

   Complainant also argues that the RAS contract itself, by reference to the Clean Air Act, establishes DOL jurisdiction. (Reply brief, pp. 32-33.) Again, the reference seems to mean that in producing the RAS, Hughes should not pollute the air.

   I find the connection between Crosby's allegedly protected activities and the environmental laws so remote that I conclude that the Department of Labor does not have jurisdiction of the complaint.

   Nevertheless, for the benefit of the Secretary and the parties, I set forth my view of this case on the merits, to avoid the energy expenditure and delay that would be involved in a remand, in the event that the Secretary disagrees on the issue of jurisdiction, which is obviously a very close question.

    The transfer from IPL

   Complainant contends that his transfer from the Image Processing Laboratory (IPL) was an instance of discrimination against him for engaging in activity, which, if not expressly protected by the environmental laws, is similar to such activity. In my view of the evidence this activity by Crosby played no role in his transfer, and even if it played some role, the role was so minor that under the dual motive test of Mt. Healthy, he would have been transferred regardless of such activity.

   Early in his career at IPL, beginning in late 1981, complainant worked on an EOSPC (Electro-Optical Signal Processing Computer) task with Jim Fiske. Near the completion of the task Crosby had a falling out with Fiske, who requested that Crosby not be assigned to work with him further. (RX-9, p. 1.) Dr. Pretzer, the manager of IPL, testified that Fiske felt Crosby wanted to redesign the project, to change the assignment, not to do it. (TR 1771.) Crosby worked for several other people after Fiske, including John Albus, John Griffith and Larry Rubin, each of whom in turn declared Crosby persona non grata. (TR 1772, 1968-1969.)

   From January 1983 to September 1983 Crosby

complained of the quality of work done under Mr. Singer's direction. Crosby itemizes this as an instance of protected activity. (Statement of Protected Activity; pp. 15-18.) This resulted in Singer's being removed from his position by his superiors, who were also Crosby 's. I do not see how this would be held against Crosby by anyone except Singer.

    Larry Rubin testified, and was extremely credible. He was willing to take Crosby after Fiske had rejected him and he was "floundering" without a specific assignment. (TR 1905.) The first project for Crosby under Rubin was to work on the procurement of Sun workstations. He did this task "very, very" well. (TR 1906.) Then Rubin wanted Crosby to integrate the workstations into the lab. He began work on this briefly, but then declined to follow through, because, he said, work on the ALTC proposal was more important. At this point (Oct. 3, 1983) Crosby asked for, and received, a letter for his personnel file commending him for his work on the Sun workstations. (CX-18.) He wanted it so that noone would have the impression that he was fired from the Sun task. Another person was hired to do the integration, but for a time Crosby refused to share his information, stating it was against his professional interest. Rubin understood this to mean that Crosby wanted to have a monopoly on the information he developed. Rubin thought such conduct was totally unprofessional and was outraged. After a warning, Crosby did release the information. Even though Crosby denied this incident, I credit Rubin, who has no reason to fabricate such an incident.

    As a result of this incident, Rubin testified, his attitude toward Crosby changed. (TR 1912.) Crosby also noted this change in attitude, but attributed it to the fact that Crosby had brought mischarging allegations to Rubin's attention. (TR 505-506.) On this point I credit Rubin because his version makes more sense, and because he is the only one who knows what went on in his mind.

    Rubin next offered Crosby work on the PCCI (pod control computer interface), which would be a long term project. Crosby said that he might soon transfer and thus might not be able to finish the project. In view of the previous incident, this made Crosby's participation in the project unthinkable. Thereafter, Rubin felt he would not accept Crosby on any other project for which Rubin had responsibility. He felt Crosby should be terminated. In August, 1984 Rubin left HAC to accept a better job.

    Meanwhile, complainant was engaging in activities that he claims were giving him the reputatuion of being a whistleblower. He was investigating his suspicion that some people were illegally cross charging, i.e. were using

government contract money to support work on company (non-government contract) projects. He believed that the LANTIRN project was a "pilot killer" and a fraud, in part because the resources intended for it were being diverted to other projects.

   Crosby testified:

    "Well, at that time period [while he was working on procuring the Sun workstations-- Dec. 82 -Sep. 83] in retrospect, I was charging my time to LANTIRN as I procured this equipment. It is now my understanding that that was illegal. Because, a, it was capital equipment. It wasn't equipment purchased with contract funds. The equipment itself was purchased with company funds. And secondly, the equipment was not used for LANTIRN algorithm development or any other LANTIRN function, as far as I could determine. Therefore, it was inappropriate to charge the time I spent evaluating the equipment and procuring it to LANTIRN.

Q. Did you mention these concerns to Mr. Rubin?

A. I believe I did.

Q. Did you mention them to anyone else?

A. I believe I did to Dr. Zavodny. [Another IPL supervisor.]

Q. Did you mention it to anyone outside of Hughes Aircraft?

A. Not until January of '84.

Q. Who did you mention it to at that time?

A. Mr. George F. O'Connor, I think. ... [He] is the person with the Defense Logistics Agency." (TR 502-3.)

    Rubin absolutely denied that he heard Crosby accuse him of mischarging, either directly or indirectly. (TR 1922.) Crosby testified that he called mischarging to Rubin's attention by telling him that there must be funding for algorithm development. (TR 505.) In view of the admitted indirectness of Crosby's assertions, I find that Rubin never understood complainant's alleged concerns, prior to complainant's transfer. Therefore, this assertion of improper charging could have had no effect on Rubin's feeling that Crosby should be terminated. It likewise could not have had an effect on Fiske's request because it was made after Crosby

worked for Fiske. Nor could the report to O'Connor of the Defense Logistics Agency have had any effect on the transfer in September 1984 because it was made anonymously. (TR 374, 1189.)

    All the Hughes witnesses gave me the distinct impression that HAC is organized in a strictly hierarchical fashion, and that a manager is very dependent on his immediate subordinates for information regarding personnel subordinate to them. Furthermore, Dr. Pretzer had particularly high regard for Fiske and Rubin. I am therefore convinced that Dr. Pretzer, the manager of the IPL, depended heavily on information supplied by his subordinates, David Knoll, his assistant manager, and people like Fiske and Rubin in making decisions regarding complainant. I find no evidence to support complainant's contention that management people higher than Mr. Arrowood, an assistant division manager, or Mr. Wasney, an assistant division manager in another division, were in any way involved in transferring or firing complainant. TO the extent that people at higher organizational levels were involved, they were members of the Human Resources or Legal Departments, whose advice was sought on procedure, but who had no effect on the decisions to take adverse action against complainant.

   Dr. Pretzer testified that the morale at the IPL was terrible in the summer of 1984 because all the staff was working very hard, 60 or more hours per week, except complainant, who "was walking the halls." For this reason Pretzer wanted to terminate Crosby. He was restrained from doing so because the Human Resources Department of HAC insisted on more documentation than IPL had. At this point Mr. Arrowood, Assistant Division Manager and Pretzer's superior, came to the rescue. He arranged with Mr. Wasney, Assistant Division Manager of another division, to transfer Crosby rather than fire him.

   Incidentally, this decision resulted in a poignant misunderstanding that illustrates the different perspectives of Crosby and his managers at HAC. The letter transferring Crosby from IPL to Division 72 was a committee product, dated September 6, 1984. (RX-8.) David Knoll wanted to give it to Crosby in the presence of a representative of Human Resources. That representative was not available when Knoll met Crosby in the hall and therefore Knoll just told Crosby that he had news for him, and to come to Knoll's office at 11 o'clock. Crosby asked, "Just tell me, is it good news or bad news." Knoll, thinking that a transfer was better than the alternative, which was termination, replied, "Good news." Crosby thought that good news must mean that no action was being taken, and was thus shocked and angry when he was given the transfer letter. (TR 1994-1995.)

   On November 22, 1983, Pretzer signed a Performance Appraisal (RX-1) rating Crosby below average in overall performance. This document was replaced in Crosby's personnel file with an Appraisal covering the same period (12/82 - 12/83) rating him above average and

not signed by Pretzer, but by a subordinate manager. (CX-18.) The function of this revised appraisal was to make Crosby's anticipated voluntary transfer possible. Rubin testified that the object of a performance appraisal, after all, is to give the employee feedback and not to hamstring his future. (TR 1918.) That anticipated transfer in late 1983 did not take place.

   In mid-July 1984 David Knoll prepared a separation summary form, which accidentally was discovered by Crosby, who was upset by it. (CX-21.) According to Knoll, Crosby was sowing dissension at this time, having many conversations with other staff members, complaining about substandard offfices, inadquate pay, and poor management. (TR 1979.) On August 25, 1984, at the request of higher management, Knoll wrote "A Chronicle" of Crosby's history at HAC from memory, assisted by the personnel file. (RX-9.) Knoll testified, and I believe him, that this was a candid document. (TR 1982.) The entry for 3/84 reviews some of the foregoing and includes the following:

    "He is receiving advice from friends (lawyers) and would represent himself (I personally feel he has not initiated action because he has become enamoured with the publicity 'whistle blowers' are getting i.e. Fitzgerald, and hopes by remaining at Hughes he will assemble enough information to get revenge on Hughes Aircraft as well as Don [Pretzer] and Larry [Rubin] n )

The entry for 8/24/84 states:

   "Paul Artac [business manager] [said] that he [Crosby] had interogated him regarding EOSPC and LANTIRN charges inferring that illegal comingling of HAC and government funds had occurred..

    In August 1984, Artac wrote: [Crosby wanted information] "with the apparent goal of exposing cost irregularities within Hughes Aircraft." (RX-44, p. 2.) Exposing cost irregularities would be the kind of background protected activity that should be considered if a later incident brings the environmental laws into play. As indicated, I believe Artac's concerns played no role in the transfer, because that was based on Crosby's inability to get along with several managers, and Rubin's judgment that Crosby had engaged in unprofessional conduct. Further, there is no evidence that Artac or anyone else thought they had something to hide, and Artac testified to the contrary.

   I also believe Knoll wanted to stop Crosby's poking around not for fear of what he would find, but because it was not productive to Knoll's lab's work. His use of the word "revenge" in his "chronicle" would indicate that the decision to fire or transfer Crosby was developed earlier, so that Crosby would have something to get "revenge" for.

   Even assuming, however, that Artac's concerns influenced Knoll and Pretzer in arranging Crosby's transfer, and the dual motive test of Mt. Healthy applies, Artac's concerns were only minor compared to the other reasons for the transfer. Thus, Crosby would have been transferred (or fired but for HAC Human Resources rules), in any event.

   On cross examination Knoll testified that he felt threatened when Crosby gave him a copy of a newspaper story reporting that a plaintiff had won a $100,000 verdict for wrongful discharge. (TR 2014.) But the threat he felt was a threat of litigation over possible discharge, not a threat of exposure of incriminating data.

   In July 1984 Crosby had a conversation with Jim West, a member of the Security Department of HAC. (TR 351.) He also mailed Security a group of documents that he believed was evidence of cross charging. (TR 358.) In mid-September this resulted in a detailed, exceedingly thorough and burdensome audit of IPL by the HAC Auditing Division. (TR 1683-1684.) Since the decision to transfer had been made previously, this incident had nothing to do with the transfer.

   I find that by the summer of 1984 management at IPL wanted complainant out of there because he could not get along with any of the managers with whom he worked, and because he seemed not to finish or follow through on projects. I believe that Crosby sincerely believed that cross charging was going on. Whether it went on in in fact is irrelevant, and the evidence on the subject that found its way into the present record is inconclusive. His activities in gathering his evidence were objected to because they were considered a waste of time. Some people who were influential in creating a dislike for Crosby's manner of working, such as Rubin, had no knowledge of his suspicions of mischarging until after they formed their negative opinions. Probably many people at IPL would have preferred to fire complainant then, but refrained from doing so because of the paper work required by Human Resources. Instead, they transferred him.

   The letter transferring Crosby from IPL to Division 72 was dated Septmeber 6, 1984 (R-8) and the transfer was officially effective September 21, 1984. (TR 289.)

   Overview of complainant's tenure in Division 72

   My view that claimant was transferred for reasons that have nothing to do with whistleblowing because it was easier than firing him makes all subsequent events seem almost secondary. Both parties focus on the incident of March 1, 1985, which is discussed below, as far more important than I consider it. The principal issue here is management's motives, and motives are built up over months and years. Just as the bombing of Pearl Harbor was not the principal cause of World War II, so the incident of March 1, 1985 was not the principal cause of plaintiff's termination, although it fixed the time for it.

   The persons whose motives I deem critical are Bill Taylor, Elvis Vachal, and Albert Wasney. They were Crosby's direct superiors in a chain of command. I reject the contention that people higher in management than these were responsible for ultimately firing Crosby. Under this view the question whether higher officials received copies of the notes Vachal was keeping on Crosby, the so-called Crosby status reports, hardly matters. Since Taylor and Vachal were dissatisfied with Crosby's work, and Wasney concurred, it does not matter that Mr. Kuelbs or other higher level management people were kept informed. Complainant attempts to hold Human Resources people, Mr. Battle and Mr. Jackson, responsible for the probation and the ultimate firing. I find that their role was not to make the substantive decision, but merely the procedural one.

   Crosby would have had to perform not just satisfactorily but well above average to survive in Division 72. It seems likely to me, regardless of some contrary testimony by Division 72 managers, that Crosby was watched more closely in his new environment than a new hire would have been. Thus, his immediate supervisor, Bill Taylor, testified: n I was aware that he was coming involuntarily from another organization and under those circumstances I was aware that I should watch him perhaps a little more closely than somebody starting in my section from scratch." (TR 2722.) Any mistakes, or poor attitude, or problems would naturally have been documented sooner for the ultimate purpose of complying with Human Resource requirements for discharge. In fact, that is what happened. In addition, by his own admission (TR 761-762, 1026) Crosby's work deteriorated, at least in the last few months.

    Not only did Crosby's work deteriorate, but he also kept complaining to the people at Division 72 that he did not belong there, and wanted a transfer. (TR 289.) This made him unpopular. There is no law against firing somebody because he complains, unless he complains about certain subjects.

    Complainant contends that many of his complaints were really complaints about quality. In his own mind they probably were. Crosby impressed me as intense and sincere, caring a great deal about following rules himself and having others do likewise. That establishes his good faith, but it fails to establish discriminatory motives in his supervisors. His supervisors disagreed with his complaints on the merits and also were tired of them, especially since they often were accompanied by uncompleted work. Fiske's complaint of 1982 that Crosby wanted to redesign the project, to change the assignment, not to do it, seems to echo in his supervisors' perception in late '84.

    This picture is partly clouded, but not obscured, by the fact that shortly after IPL decided to transfer Crosby he began a more vigorous campaign to correct MAC's errors as he saw them, and incidentally, received more publicity. This activity is characterized by respondent as a vendetta.

    The alleged protected activities

    As highlighted by the difference between Mackowiak v. University Nuclear Systems, supra, 735 F. 2d 1159 and Brown & Root v. Donovan, 747 F. 2d 1029 (5th Cir. 1984), there is a difference of opinion respecting what activity is protected. In oversimplified shorthand, Mackowiak says that even internal complaints to management are protected; Brown & Root says that only complaints to the government are protected. Complainant's counsel have also cited cases holding that threats to file citizen's suits, exposes to the media, and similar activities are protected.

    In the instant case, complainant engaged in much activity for which he claims protected status, some consisting of complaints to or contacts with people outside Hughes Aircraft Company, some consisting of complaints to his managers within the company (and one series of conversations with Mr. Rosoff, who is sui generis.) As explained below, I find that the external complaints were never sufficiently communicated to the people who made the personnel decisions affecting complainant to fulfill one element of a prima facie case, i.e., knowledge of the employer.

    His complaints to managers within the company, were, of course, well known to the people who made The personnel decisions. But these complaints were so intertwined with his performance on the job that I discuss them in that context.

    Since I find the evidence overwhelming that complainant would have been transferred, put on probation, and terminated whether or not he engaged in any activity that could conceivably be termed protected, I need not, and do not, decide precisely which conduct is and which is not protected. That would be a difficult question here, and I have assumed that the law is most favorable to complainant. Most significantly, I have assumed that conduct which is not protected by the environmental laws is nevertheless relevant in this case because it might establish the employer's motive. Thus, if any of the complainant's conduct is protected under the environmental laws, and that conduct plays any role in an adverse personnel action taken against complainant, I assume that I may consider any of his other conduct and management's reaction to it in assessing management's motives.

    The following items are incidents, not elsewhere discussed, which complainant contends were protected activities, prior to the last, PPUP, incident.

    Complainant assisted in furnishing CNN information. He furnished information about Hughes to Cable News Network for the CNN broadcast entitled "Who's Spoofing Hughes?" from mid-October 1984, until after complainant was terminated. This was corroborated and detailed by an offer of proof

regarding the testimony of Sheila Hershow that was made by complainant and accepted as evidence by respondent. (TR 1520-1527.) This activity took place after Crosby's transfer from IPL, and thus could not have influenced his transfer. I also find that it did not influence Taylor, Vachal or Wasney because I credit their testimony that they did not know of Crosby's role, except Vachal, who heard of it from Crosby and paid little attention to it. (TR 2730, 2480-2482, 2246-2248.)

    The September 10, 1984 article in the Daily Breeze." (RX-10.) This article in a local paper quoted Crosby by name as criticizing the quality of Hughes' workmanship. It appeared after the IPL transfer decision had been made, so it could not have had an influence on that. Taylor, Vachal and Wasney all were aware of the article. (TR 2724, 2728; 2478-2479, 2591; 2237-2239.) I credit each of them that the article had a minimal impact on their decisions regarding Crosby. Taylor and Vachal in particular learned of the article from Crosby himself, presumably with his explanation that he was misquoted.

    Crosby also had other outside contacts. His contacts with government agencies or personnel included: Ernie Fitzgerald of the U.S. Air Force; congressional committees and various DOD agencies. He participated in a mailing to members of Congress regarding problems at HAC. (Complainant's Brief, p. 128.) He also contacted various newspaper reporters, as well as CNN, discussed above.

    These activities could not have given Crosby a reputation with Taylor, Vachal or Wasney because they never found out about these activities.

    Conversations with Mr. Alden and Mr. West. Complainant spoke to Mr. Alden and Mr. West on September 6, 1984 and threatened to go to the media and to the F.B.I. if these people did not do something internally about his complaints. There is no evidence that these threats were ever communicated to Taylor, Vachal or Wasney, the decision makers.

    Artac memo to Wasney, dated 29 October 1984. (RX-13.) This memo describes Crosby s use of a copying machine in the IPL, after Crosby had been transferred to Division 72. It requests Division 72 management to keep Crosby out of the IPL area. Crosby testified he was copying a Defense Hotline poster. The memo states: "... the past history of this individual has prompted me to write this ... I cannot help but believe that these trips are motivated by his desire to obtain information that he will use in an attempt to embarrass Hughes Aircraft Company in the press or other forms of public media."

    I think the use of the copying machine is not intended as an example of protected activity. Rather, complainant contends that this memorandum, and Artac's notes of August 24, 1984 (RX-44), discussed above, show that Crosby's "past history" is the history of a whistleblower and that respondent's management was

concerned about Crosby's whistleblowing.

    Mr. Artac, who was business manager at IPL, testified that he was concerned about Crosby looking through the proposal file cabinets after hours a week before the copy machine incident. (TR 1697.) That file contained material that might be of value to a competitor, and Artac was concerned over security breaches. (TR 1754.) However, as mentioned above, Artac also perceived complainant as wanting to embarrass Hughes. I do not believe that Artac's concerns, as reflected in the memo of October 29 (RX-13) became concerns of Taylor or Vachal in their decisions to put Crosby on probation and to terminate him. There is no evidence to show that they ever saw the memo or found out about its contents, and I believe their own perceptions were the driving force behind the personnel actions against Crosby.

    Wasney saw the memo, but I find that his subordinates' reports of Crosby's performance were more significant than any concern he may have had about HAC's "embarrassment."

    Complainant's contentions rest on the assumption that higher management ordered Crosby's firing. I find no evidence to support this assumption. On the contrary, I find it improbable, because the personnel actions taken against Crosby are completely explainable on the basis of Crosby's performance on the job, without reference to these activities, which Crosby tried not to reveal to people at Hughes. The Rosoff communications are discussed separately.

    The work in Division 72

    Crosby was assigned to work in the section headed by Bill Taylor in Divsion 72. The Department Manager was Elvin Vachal. The Assistant Division Manager was Albert Wasney, Jr. All these men testified about Crosby's work and their process in terminating him.

    Crosby's first project under Taylor was to work on the FLIR Missile Tracker, which was part of the C-NITE program. He was assigned to work with Bill Milligan, a senior scientist. The first task was to work on a scale factor problem. According to Taylor, Crosby completed this slowly but satisfactorily. (TR 2735.)

    His second task was to prepare a signal description list. On November 16, 1984 Crosby itemized the obstacles he felt interfered with his work on this task in an AVO (Avoid Verbal Orders -- a HAC term for memorandum). (RX-45.) He stated: "The obstacles ... arise primarily from the 'bottom up' design approach currently being employed by the system designers." This "bottom up" complaint was Crosby's chief complaint about poor quality design in Taylor's section.

    All witnesses agreed that ordinarily, when designing new equipment, the "top down" approach is the right

approach. Taylor and Vachal explained, however, that this project was not to design new equipment, but rather to adapt existing pieces of equipment to each other. In these circumstances the "bottom up" approach is the only feasible one.

    Crosby refers to his complaints on this point as protected activity. (Statement of Protected Acitivity, p. 18.) This involved his criticisms of Bill Milligan as well. Complainant's proposed findings of fact Nos. 281-339 deal with this subject. Looked at exclusively from Crosby's point of view his complaints about mismanagement and the "bottom up" approach to doing the project seem legitimate, and were undoubtedly criticisms of quality. But viewed from management's perspective, which is the relevant perspective when evaluating management's motives, Crosby was simply annoying. The decision had been made not to redesign the whole system (top down). (TR 2354-2355.) (Contrary to complainant's proposed finding of fact No. 328, Mr. Wasney did not say that C-NITE could have been done "top down." Id.) Wasney testified: "We'd have to reorganize half of EDSG in order for him to successfully complete his assignment." (TR 2259.) In the words of the IPL people, Crosby wanted to redesign the project, not do it. This was impolitic for someone under scrutiny. If he was under scrutiny because of whistleblowing his complaints might be considered protected activity. But I have found he was under scrutiny because he was involuntarily transferred, and he was transferred for reasons that have nothing to do with whistle blowing.

    I do not have the expertise to resolve the technical difference of opinion regarding "bottom up" or "top down," nor need I do so. Significant here is whether Taylor simply assigned Crosby this task in the hope that he would fail at it, or whether the assignment needed to be done and Taylor hoped Crosby would do it. I credit Taylor that the latter is true. Even Crosby testified that he did not believe Taylor consciously was trying to fire him at this time. (TR 1028.) Undoubtedly, Crosby's work product on this task was unsatisfactory. (R-31.)

    I also believe Taylor that there was "a rift developing" between Crosby and Milligan (TR 2737) and later Milligan asked that Crosby be removed from the project. I believe it because it repeats the experience at IPL.

    Next, Crosby worked with Norman Branyan on the A-6 program. He completed the first task, which was short, well. The next task was never completed because it was premised on HAC getting a contract that it never got. But Branyan wanted to have the work that Crosby had done, and keep it for possible later use. Crosby never turned over anything from that task.

    Crosby complained that he needed a complete Grumman manual to understand this task, and wanted to work on a VAX computer to make his task easier. Taylor testified that a complete manual was not

necessary to the task, and no VAX computer was readily accessible. (TR 2760-2762.) Again, I cannot judge who is technically correct, but as time passed Taylor must have been losing patience. Crosby was performing less well and his usefulness was expiring. .

    Crosby arranged to have himself loaned to the HAC Ground Assistance Group in Fullerton in February 1985. He hoped this transfer would be permanent. The change only lasted four days. Complainant asserts that he was returned to Taylor's section in El Segundo to be fired. There is no evidence to support this contention. But even if there were, it would not show that the contemplated termination was in retaliation for Crosby's allegedly protected activity. If HAC was one big operation, with Fullerton and El Segundo cooperating closely with each other, as complainant implies, there were ample grounds for terminating him. In fact, I credit respondent's witnesses who stated that Crosby could not stay at Fullerton because that would have violated a hiring freeze there.

    When Crosby came back from Fullerton in February 1985 he worked for two or three days on the RAS (Remote Active Spectrometer), the chemical gas detector. This work ceased because another laboratory took over the work. Complainant contends that he was taken off this project because of its sensitive nature and possible environmental impact, and his reputation as a whistleblower. No evidence supports this contention.

    On February 19, 1985 Crosby was placed on probation for failing to turn over the A-6 work product and for failing to write the signal description list. (R-23.) This was obviously a device to pave the way for termination in a document acceptable to Human Resources. The next instance of unsatisfactory performance would be used to terminate Crosby.

    The PPUP task and the meeting of March 1, 1985

    That instance came quickly. On February 28, 1985 Crosby was given the PPUP task mentioned above in connection with the jurisdiction of the Department of Labor. (C-39, C-40.) It required Crosby to become familiar with a new computer language, among other requirements. Crosby felt he was being set up for termination. He asked two people whether it was reasonable to expect him to complete this task within his one month probationary period. He felt he got the answer he wanted, "no."

    On March 1, after consulting a lawyer early in the morning, he discussed the task in detail with Taylor and Van Oler, who had proposed the PPUP. Crosby objected to the whole proposal. Taylor and Oler were trying to talk about specifics. Taylor asked Crosby whether he was willing to work on the project. According to Taylor, Crosby said, "No." According to Crosby, he said not as proposed. Although counsel make much of the difference, I fail to see

it. Wasney and Vachal called it a clear case of insubordination. Crosby feels he was set up. I find that he was terminated because now there was sufficient documentation to satisfy Human Resources. I believe that had there been sufficient documentation earlier, he would have been terminated earlier; had he agreed to do the task, but done it unsatisfactorily, he would have been terminated at that time; had he agreed to do the task, and done it well, all parties would have been surprised, and he would have gotten one more chance.

    The foregoing discussion of the March 1, 1985 incident is not a finding that respondent's firing of complainant was "pretextual" as that term is used in the law of employment discrimination. An employer is not permitted to use the employee's conduct as a pretext for prohibited discrimination. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825 (1973). Here, Crosby's insubordination, even if not the true reason for his termination (or, as more likely, not the only reason) was not a pretext for prohibited discrimination. It was a pretext for personnel action permitted by law but not permitted by house rules. It was the last piece in a jig saw puzzle picture that house rules required to be complete before it could be looked at. The law does not require so complete a picture. It is not against the law to terminate an unsatisfactory employee, and under the law he could have been terminated long before March 1985. At HAC it is apparently against house rules to do so without documentation. How HAC satisfies its own rules is not relevant to the subject inquiry.

    In the discussion of jurisdiction I stated that I would not decline jurisdiction on so doubtful a finding as that Crosby never said, "bugs in the RAS." I found both that Crosby said it, and that Taylor and Van Oler never heard it. Regardless of the consequences of that finding for jurisdiction, it is highly significant on the issue of motivation. Since Taylor and Van Oler never heard it they could not have been motivated by an animus prohibited under the environmental laws in terminating Crosby. It is similarly unlikely that Wasney had any idea that Crosby's complaints about quality had any bearing on environmental laws.

    James Rosoff

    From October 1984 till after Crosby was fired he was frequently in contact with James Rosoff. Crosby thought Rosoff was trying to help -him expose what he thought were illegal activities at HAC. In fact, Rosoff was helpful in putting Crosby in touch with Cable News Network. unbeknownst to Crosby, Rosoff was also reporting some of his conversations with Crosby to HAC Security personnel. Claimant's exhibits 116 - 122 are memoranda from R.W. Carpenter, a security inspector employed by HAC, to J.T. Kuelbs, respondent's lawyer in charge of the investigation regarding the Cable News Network's program entitled "Who's Spoofing Hughes?"

    Crosby contends that Rosoff must have been a paid

informant, hired by HAC. The evidence of this is only that, as far as Crosby knew, Rosoff had no other source of income. This is not enough to convince me that Rosoff was a Hughes agent.

    Nor need I decide whether Crosby's talking to Rosoff is itself protected activity, even if the conversations included references to the environmental protection laws, or other protected activity. There is no evidence that Rosoff's information ever reached Vachal, Taylor, or Wasney, the decision makers, and I credit their testimony that they never heard of the Rosoff conversations.

    Disparate treatment

    Complainant contends that respondent's discriminatory motives in taking personnel action against him are evidenced by disparate treatment. The following instances warrant comment.

    Other engineers, Real and Andrews, had worse performance appraisals, but were not subject to transfer, probation and termination. Andrews seems to have been fired, although his termination summary was changed to "quit" (CX-12) and Real quit, ostensibly to get a better job with a relative (CX-9). Obviously, there is insufficient information about these individuals to make a comparison.

Further, several witnesses questioned the validity of the performance appraisal forms put out by Human Resources.

    Misconduct among engineers in IPL was more outrageous than Crosby's alleged misconduct. Complainant's brief, p. 152, lists such items as blocking fire doors, playing computer games on company computers and illegally mischarging on government contracts. The mischarging allegation, if proven (which it was not), would be serious. The other allegations are sophomoric, and not nearly as serious as Rubin's perceptions of Crosby's unprofessionalism, nor as deleterious to work as Crosby's inability to get along with many managers.

    In my order relating to discovery, dated January 3, 1986, I wrote: "Absent satisfactory responses [to certain discovery requests], I will infer that most persons who were disciplined with punishment less than discharge had committed acts at least as serious as the conduct for which Crosby was allegedly discharged, and that Messrs. Rubin, Andrews, Yokota, Real, and Beckett, were retained although they engaged in conduct at least as serious as the conduct for which Crosby was allegedly discharged." That statement was writ-ten before trial. In referring to "the conduct for which Crosby was allegedly discharged" I seem to have been focusing on the events of March 1, 1985, on which counsel focused then and still focused on in their briefs. As explained above, I attach less significance to those events now than counsel do, and than I apparently

did on January 3. Furthermore, I cannot say that respondent failed to give satisfactory responses to the relevant discovery requests.

    Crosby was put under surveillance by the Security Department; presumably, others were not. Crosby was erroneously suspected of a variety of things such as sabotaging equipment and leaking private documents to CNN. Certainly HAC was authorized to investigate these incidents. But there Is nothing in this record that shows that the Security Department's investigation had any effect on the decision makers. It appeared, rather, that Security's security was pretty good, and that their activities were reported only to higher ups in the Security Department and not to the line managers.

    A meeting held on January 11, 1985 with Crosby and two Security officers frightened Crosby and surely contributed to the deterioration of his work. I think this meeting was a bona fide part of the investigation.

    Just before he was put on probation Crosby arranged for a transfer to MAC's facility at Fullerton. He alleges that this transfer was sabotaged by HAC because they wanted to fire him or force him to resign. (Complainant's brief, p. 158.) The basis for this allegation is Rosoff's boast that he called William Cornett, Security Manager at Fullerton, who "squashed" Crosby's transfer. (CX-122.) The evidence to the contrary, which is more credible, is that Crosby was returned from Fullerton because the attempted transfer violated a hiring freeze at Fullerton. (TR 281, 1395, 2518, 2764; CX-135.)

    Complainant asserts that he was discriminated against in work assignments; HAC knew what he liked to do and wouldn't let him do it. Because many of his work assignments were given to him after he did things that he thinks of as whistleblowing, he infers a causal connection between the two. I do not draw that inference. In his early projects at IPL he was assigned to managers who were willing to take him. After Rubin felt Crosby was unprofessional there was hardly anything left for him to do. He was transferred to, but not wanted in Division 72, and he did not want to be there. He was given whatever was available. He didn't like it. He was fired. While his work was going down hill, his contacts with the media and government and Rosoff intensified. There might be a connection, but it was not shown.

    Vachal and Taylor kept notes on Crosby's performance and did not keep such notes on others. This was obvious documentation for impending disciplinary action; notes are not kept on people who are working well. That does not show prohibited motivation for the impending disciplinary action.

    Miscellaneous motions

    On August 4, 1986 this office received five motions from complainant, to wit: (1) Motion for Sanctions on the Basis of Respondent's Intimidation and Influence of Complainant's Witness, (2) Motion for Sanction for Failure of Respondent Hughes Aircraft to Answer Interrogatories, (3) Motion for Sanctions Based on a Systematic Pattern of Violations of the D.O.L. Rules and the F.R.C.P., (4) Motion for Sanctions Based on Respondent MAC's Objection to the Release of the Rosoff Memoranda, and (5) Motion for Default Judgment and Sanction for Failure to Comply with a Court Order. By order dated August 8, 1986 I denied said motions.

    These motions contend that various alleged procedural irregularities and conduct of defense counsel infected the trial so as to warrant sanctions. Of course, I cannot tell what my decision in this case might have been if different evidence had been differently presented. But in my view of the case, based on the evidence that was presented and explained at length in the instant recommended decision, none of the matters raised by these motions, interpreted as far as possible in complainant's favor, would have changed the result.

    The first motion deals with Sheila Hershow, the reporter for CNN. Complainant expected her to testify. She ultimately refused to do so, on the advice of counsel and because her employer forbad it. Complainant's counsel undoubtedly spent an enormous amount of energy during a strenuous trial attempting to clear this matter up. Considering the strain that counsel must have been under, they performed very well.

    Defense counsel stipulated (TR 1527) that everything that Ms. Hershow would have testified to had she been permitted to do so, according to complainant's offer of proof (TR 1520-1527), would be accepted by respondent as though she had testified. This cured a large part of the problem, regardless of its etiology. It obviated my having to rule on the motion to disqualify Mr. Sauer and Latham & Watkins from further participating as counsel for respondent in this proceeding.

    Counsel assert that, in addition, they were prejudiced by Ms. Hershow refusing to talk to them further, upon orders from her employer. There is insufficient evidence to make me believe that Mr. Sauer instructed Ms. Hershow. It is clear her orders came from her employer, for reasons that probably have nothing to do with the instant litigation.

    The second motion deals with respondent's answers to interrogatories regarding the Rosoff memos. Some answers were incomplete and may have misled counsel. I am not convinced that such lack of completeness was intentional by Mr. Sauer. In any event, the Rosoff affair came after the transfer from IPL, and in my view of the case, its importance was

exaggerated. MAC's assertion that Rosoff was not in their employ has not been disproved.

    The third motion alleges a systematic pattern of violating the Department of Labor rules and the Federal Rules of Civil Procedure. I find no such pattern.

    The fourth motion is founded on the proposition that respondent's counsel pleaded the attorney-client privilege and the attorney's work product doctrine in bad faith. Despite counsel's citations I do not think the matter is as clear as they contend.

    The fifth motion relies on the matters adverted to in motions (1) through (4) and adds the item that respondent failed to comply with my order (memorialized in my letter to Messrs. Sauer and M. Kohn of February 19, 1986) to have two out of four high mangement officials of Hughes appear at trial. Complainant's attempt to enforce this order pro se in U.S. District Court was denied. Assuming, without deciding, that I retain authority to impose sanctions for this violation of my order (cf., 29 CFR §18.7(d)(2) and §18.29(b)) I refuse to do so. Since the people at Dr. Pretzer's and Mr. Wasney's level and below testified that they made the personnel decisions relevant here, it is highly unlikely that people at a higher level would contradict them, or offer anything helpful to complainant. Whether certain testimony might be helpful is, naturally, a decision for counsel; but whether to impose sanctions on a person for declining to attend and testify or upon a party is my decision, and I will not do so unless I believe the testimony would be material.

    In accordance with 29 C.F.R. § 24.6 I recommend that the Secretary deny the complaint.

       Thomas Schneider
       Administrative Law Judge

Dated: 18 AUG l985
San Francisco, California